Speech to the Property and Freedom Society
September 2016
(First published by the Libertarian Alliance, 9th September 2016)

I

At repeated requests from many sides—and given my already
advanced stage in life—I have deemed it appropriate to take this
opportunity to speak a bit about myself. Not about my private life, of
course, but about my work. And not about all subjects—and there
are several to which I have made some, however little contribution in
the course of the years—but one subject only. The one subject,
where I consider my contribution the most important: the apriori of
argumentation as the ultimate foundation of law.

I developed the central argument during the mid-1980s, in my own
mid-thirties. Not from scratch, of course. I took up ideas and
arguments previously developed by others, in particular my first
principal philosophy teacher and Doktorvater, Jürgen Habermas,
and even more importantly Habermas’ long-time friend and
colleague, Karl-Otto Apel, as well as by the philosopher-economists
Ludwig von Mises and Murray Rothbard. In any case, however, the
argument I ultimately developed appeared to me essentially new and
original. (Around the same time, Frank van Dun, living in Flanders and
writing in Dutch, and having been brought up in very different
philosophical circumstances and traditions, had come up with a very
similar argument and conclusion. Yet at the time, we both did not know
of each other’s work and would only find out years later.)

In a nutshell—I shall come to more detailed explanations and
clarifications shortly—the argument runs like this:

That: All truth-claims—all claims that a given proposition is
true, false, indeterminate or un-decidable or that an argument is
valid and complete or not—are raised, justified and decided upon
in the course of an argumentation.

That: The truth of this proposition cannot be disputed
without falling into contradiction, as any attempt to do so would
itself have to come in the form of an argument. Hence, the
“Apriori” of argumentation.

That: Argumentation is not free-floating sounds but a human action,
i.e., a purposeful human activity employing physical means—a
person’s body and various external things—in order to
reach a specific end or goal: the attainment of agreement concerning
the truth-value of a given proposition or argument.

That: While motivated by some initial disagreement, dispute or
conflict concerning the validity of some truth-claim, every
argumentation between a proponent and an opponent is itself a
conflict-free—mutually agreed on, peaceful—form of
interaction aimed at resolving the initial disagreement and reaching
some mutually agreed-on answer as to the truth-value of a given
proposition or argument.

That: The truth or validity of the norms or rules of action that
make argumentation between a proponent and an opponent at all
possible—the praxeological presuppositions of
argumentation—cannot be argumentatively disputed without falling
into a pragmatic or performative contradiction.

That: The praxeological presuppositions of argumentation, then,
i.e., what makes argumentation as a specific form of truth-seeking
activity possible, are twofold: a) each person must be entitled to
exclusive control or ownership of his physical body (the very mean
that he and only he can control directly, at will) so as to be able to
act independently of one another and come to a conclusion on
his own, i.e., autonomously; and b), for the same reason of
mutually independent standing and autonomy, both proponent and
opponent must be entitled to their respective prior possessions, i.e.,
the exclusive control of all other, external means of action
appropriated indirectly by them prior to and independent of one
another and prior to the on-set of their argumentation.

And that: Any argument to the contrary: that either the proponent
or the opponent is not entitled to the exclusive ownership of
his body and all prior possessions cannot be defended without falling
into a pragmatic or performative contradiction. For by engaging in
argumentation, both proponent and opponent demonstrate that they seek
a peaceful, conflict-free resolution to whatever disagreement gave
rise to their arguments. Yet to deny one person the right to self-
ownership and prior possessions is to deny his autonomy and his
autonomous standing in a trial of arguments. It affirms instead
dependency and conflict, i.e., heteronomy, rather than
conflict-free and autonomously reached agreement and is thus contrary
to the very purpose of argumentation.

When I had worked out this argument at last, I was struck by how
simple and straightforward it was. I was almost astonished why it had
taken me so long to develop, and even more so why no one else
apparently had thought of it before.

II

Yet then I thought of Ludwig von Mises and his famous argument
concerning the impossibility of economic calculation under socialism.
Mises, incidentally, had worked out this argument also in his own mid-
thirties. In short, what Mises had argued was that the purpose of all
production is the transformation of something—an
input—less valuable into something—an
output—more valuable, i.e., efficient and economic
instead of wasteful production. That in an economy based on the
division of labor recourse must be taken to monetary calculation in
order to determine if production was efficient or not. That input
prices must be compared with output prices to determine profit or
loss. And yet, that no input prices exist under socialism—and
hence no possibility for economic calculation -, because under
socialism all production factors are, by definition, owned by one
single agency (the State), thus precluding the formation of any and
all factor-prices.

When I had first encountered Mises’ argument, I was
immediately convinced. My reaction was, wow, how obvious,
straightforward and simple! And also: why did it take Mises so long to
state something so obvious, and why had no one else discovered his
seemingly elementary insight before?! To be sure, some historians of
economic thought were eager to point out that some earlier authors had
already hinted at Mises’ argument. Terence Hutchison even
discovered a glimpse of Mises’ argument in Friedrich Engels, of
all people. But this notwithstanding, it appeared to me a gross
distortion of intellectual history and a grave intellectual injustice
to claim anyone but Mises as the originator of the argument and the
man who had finished off classical (Marxist) socialism intellectually,
once and for all.

As well, while perhaps not quite so surprising, the reaction to
Mises’ “impossibility proof” was also
instructive—especially given that Mises’ proof concerned a
problem that at the time of his writing, in the immediate aftermath of
WW I, had taken on enormous importance with the Bolshevik revolution
of 1917 in Russia.

By and large: There was no reaction at all. Mises was simply
ignored. And the continued existence of the Soviet Union and, after WW
II, of the entire Soviet Empire was taken by most of the economics
profession and large parts of the lay public as well as empirical
proof that Mises was wrong or in any case irrelevant.

A few young economists such as Friedrich Hayek, Fritz Machlup,
Wilhelm Röpke and Lionel Robbins were immediately converted by
Mises, abandoned their erstwhile leftist leanings and became prominent
spokesmen of capitalism and free markets; and a few prominent
socialists such as Otto Neurath, Henry D. Dickinson and Oskar Lange
tried to refute Mises’ argument. But, in my judgment, even
Mises’ early “fans” watered-down, misconstrued or
distorted and so weakened Mises’ original argument; and as for
his socialist “foes,” they did not even seem to comprehend
the problem. Indeed, even after Mises had systematically restated and
further elaborated his argument, two decades after its original
presentation, in his magisterial Human Action, and even after
the implosion of socialism in the late 1980s and early 1990s, when a
few socialists such as Robert Heilbronner felt compelled to concede
that Mises had been right, they still showed no sign of having grasped
the fundamental reason why.

III

The fate of my own argument was in many ways similar to that of
Mises’ proof.

Most certainly, given that we live today in an age of rampant
legal-ethical relativism—of “anything
goes”—and a world in which private property rights have
been almost everywhere and universally transformed into mere State-
granted or fiat-property instead, my argument concerned
a matter of some importance. For it implied a refutation of all forms
of ethical relativism as self-contradictory doctrines, and positively
it implied that only the institution of private property in
one’s body and prior possessions could be ultimately justified,
whereas any form of fiat-property was argumentatively indefensible. If
anything, then, my argument concerned a matter of even greater and
more fundamental importance than Mises’ proof.

But not entirely so. Murray Rothbard, I am particularly proud to
say, accepted my proof immediately as a breakthrough, and so did
Walter Block and Stephan Kinsella. Indeed, only shortly after the
first English language presentation of my argumentation ethics,
Kinsella brilliantly supplemented and expanded it by integrating it
with the legal theory of “estoppel,” i.e., “the
legal principle that bars a party from denying or alleging a certain
fact owing to that party’s previous conduct, allegation, or
denial.” As well, several more or less friendly reviews and
discussions of my argument appeared in print. A small symposium on my
argument appeared in Liberty Magazine, with both supporting
“fans” and critical or hostile “foes.” I
replied to some of my initial critics and their criticisms, but then,
except for a few occasional asides, let the matter rest. Not least,
because I was paid at the time to do economics, not philosophy. Some
later critics, in particular Robert Murphy and Gene Callahan, who
apparently accepted my libertarian conclusion but rejected my way of
deriving it (without, however, proposing any alternative reason for
their own libertarian “beliefs”), were argumentatively
demolished by Stephan Kinsella, Frank van Dun and also Marian Eabrasu.
The debate concerning my argument continued, however, and has in the
meantime reached a substantial size. Thankfully, Kinsella has
documented and regularly updated the still growing literature on the
subject.

IV

It is not my purpose here to give a summary account and assessment
of the entire debate. Instead, I want to take the opportunity to
further clarify and elaborate on the elementary character and indeed
the simplicity of my argument and along the way dispel some recurring
misunderstandings. In this, I will proceed in two consecutive steps.
First, I will try to clarify the “argument from
argumentation” itself and the implied notion of “ultimate
justification” (and, mutatis mutandis, of an “ultimate
refutation” of all forms of relativism). Then, in a second step,
I will try to clarify the specifically and decidedly libertarian
implications that follow from the “apriori of
argumentation.”

The question of how to begin philosophy, i.e., the quest for a
starting point, is almost as old as philosophy itself. In modern
times, Descartes, for instance, claimed his famous “cogito, ergo
sum” as such. Mises considered the fact that humans act, i.e.,
that humans pursue anticipated ends with means (whether successfully
or not), as such. The later Wittgenstein thought of ordinary language
as the ultimate point of departure. Others, such as Popper, denied
that any such starting point existed and could be found. As a little
reflection shows, however, none of this will quite do. After all,
Descartes’ “cogito” is a proposition and its
justification comes in the form of an argument. Likewise, Mises
speaks about action as an “ultimate datum” and presents an
argument: namely that one cannot purposefully not act,
to justify this point of departure. Similarly, Wittgenstein’s
ordinary language philosophy is not just ordinary talk but claims to
be true talk about talking, i.e., a justificatory argument. And
as for relativists a la Popper, to assert that there is no ultimate
starting point and yet claim this proposition to be true is
plain contradictory and self-defeating.

In short: Whatever has been claimed here as starting points, or
even if the existence of such a point has been denied, they all,
unwittingly and as a matter of fact, have affirmed the existence of
one and the same point of departure: namely argumentation; and they
could deny argumentation the status as ultimate starting point only at
pain of contradiction.

This criticism of other philosophers is not meant to deny some
partial truths of their various contributions. Indeed, upon reflection
we can recognize that every argumentation is also an action, i.e., a
purposeful pursuit of ends with the help of means (Mises). But: not
every action is an argumentation. Indeed, most of our actions are not.
Further, we can recognize that argumentation is a speech-act,
involving the use of a public language as a means to communicate with
other speakers (Wittgenstein). But: not every speech-act is an
argumentation. Indeed, most are not. As well, we recognize that every
argumentation, and by implication also every speech-act and every
action whatsoever presupposes the existence of an acting, speaking or
arguing person (Descartes). But: it is only from the vantage point of
an arguing person that the distinction between actions, speech-
acts (or the so-called “lower”—expressive, signaling
and descriptive—functions of language) and argumentation (as the
“highest” function of language) can be made and claimed to
be true.

[As for Popper and Popperian critics: It is certainly true that
deductive arguments proceeding from premises to conclusions are only
as good as their premises are, that one can always ask for a
justification of these premises, and then of the premises of this
justification, and so on and on, leading to an infinite regress.
However: The argument presented is not a deductive argument,
but a transcendental one directed at the skeptic by pointing out what
even he must, and in fact does accept as an ultimate
truth simply in order to be the skeptic that he is. Thus, a skeptic
could certainly deny that humans act, speak and argue and claim
instead that no, they do not, and in doing so he would not become
involved in a formal, logical contradiction. But in making this claim
he would be involved in a performative, pragmatic or dialectic
contradiction, because his words would be refuted by his actions,
i.e., by the very fact of claiming his words to be true.]

Argumentation, then, is a (comparatively rare) sub-class of action,
and more specifically also of speech-acts, motivated by a unique
reason and aimed at a unique purpose. It arises from
interpersonal disagreement or conflict concerning the truth-value of a
particular proposition or argument (more on the important distinction
between disagreement on the one hand and conflict on the other later
on!) and it aims at the dissolution or resolution of this disagreement
or conflict by means of argumentation as the unique method of
justification. One cannot deny this statement and claim such
denial as true without actually affirming it by one’s very act
of denial, i.e., without performative, pragmatic or dialectic
contradiction. Indeed, to paraphrase van Dun, ‘to claim that you
cannot or ought not to argue and take arguments seriously is to say
that you cannot do what you actually are and claim to be doing.’
It is like saying ‘there are no reasons for claiming this or
that to be true and here are the reasons for why there are no such
reasons.’ As well, as van Dun keenly observes, Hume’s
famous dictum that ‘our reason is and ought to be the
slave of our passions,’ while not a contradictio in
adjecto, is in fact a performative or dialectic contradiction. For
Hume gives reasons and pays serious attention to reasons while
claiming that no attention should be given to them.

In light of this insight into the nature and epistemological status
of argumentation as the unique method of justification many objections
directed at my original argument can be easily discarded.

It has been held against the “argument from
argumentation,” for instance, that one can always refuse to
engage in argumentation. This is certainly true and I have never said
anything to the contrary. However, this is not an objection to the
argument in question. Whenever a person refuses to engage in
argumentation, he is also owed no argument in return. He simply
doesn’t count as a rational person in regard to the question or
problem at hand. He is treated as someone to be ignored in the matter.
Indeed, someone always, on principle, refusing to argumentatively
justify any of his beliefs or actions whatsoever against anyone, would
no longer be considered and treated as a person at all. He
would be considered and treated instead as a “wild thing”
or an “outlaw.” His presence and his behavior would pose
for us a merely “technical” problem. That is, he would be
treated like the little child screaming “no” at everything
said to him or like an animal, i.e., as something to be controlled,
domesticated, tamed, drilled, trained, or “coached.”

Another “objection” to my argument from argumentation,
advanced repeatedly and by several opponents in a seemingly most
serious manner, actually better qualifies as a joke. It boils down to
the claim that, even if true, my argument is irrelevant and
inconsequential. Why? Because the ethics of argumentation is valid and
binding only at the moment and for the duration of argumentation
itself and even then only for those actually participating in it.
Curiously, these critics do not notice that this thesis, if it were
true, would have to apply to itself, too, and hence, render their own
criticism irrelevant and inconsequential also. Their criticism itself
then would be just talk for the sake of talking, without any
consequence outside of talking. For, according to their own thesis,
what they say about argumentation is true only when and while they are
saying it and has no relevance outside the context of argumentation;
and moreover, that what they say to be true is true only for the
parties actually involved in argumentation or even only for them
alone, if and insofar as there is no actual opponent and they
say what they say in an internal dialog only to themselves. But why,
then, should anyone waste his time and pay attention to such private
“truths”?

More importantly and to the point: In fact, these critics are
not engaged in idle talk or a mere joke, of course, but in
serious argumentation, i.e., in the presentation of an alleged
counter-argument, and as such and in this capacity, then, they become
inescapably entangled in a performative or dialectic contradiction:
because they actually do claim that what they say about argumentation
is true inside and outside of argumentation, i.e., whether one
actually argues or not, and that it is true not only for them, but for
everyone capable of argumentation. That is: contrary to what they say,
they actually pursue a purpose above and beyond the exchange of words
itself. Argumentation is a means to an end and not an end in itself.
It is the very purpose of argumentation to overcome an initial
disagreement or conflict regarding some rival truth claims and to
change one’s former beliefs or actions depending on the outcome
of argumentation. That is, argumentation implies that one ought to
accept the consequences of its outcome. Otherwise, why argue? Hence,
it is a performative or dialectic contradiction to say, for instance,
‘let us argue about whether or not minimum wages increase
unemployment’ and then add: ‘and let us then, regardless
of the outcome of our debate, continue to believe what we believed
beforehand.’ Similarly, it would be self-contradictory for a
judge in a trial to say ‘let us find out who of two contending
parties, Peter and Paul, is right or wrong, and then ignore the
outcome of the trial and let Peter go, even if found guilty, or punish
Paul, even if found innocent.’

Equally silly, some critics have charged me for supposedly
claiming, falsely, that the truth of a proposition depends on someone
making this proposition. But nowhere did I claim any such thing.
Certainly, that the earth orbits around the sun, that water runs
downward or that 1+1=2 is true, whether we argue about it or not.
Argumentation does not make something true. Rather, argumentation is
the method for justifying propositions as true or false when brought
up for consideration. Likewise, the existence of property and
property-rights or -wrongs does not depend on the fact that someone
argues to this effect. Rather, property and property-rights or -wrongs
are justified when up for contention.

V

With this I come to the second part of my clarifications: the
libertarian implications of the ethics of argumentation.

For this, it is first necessary to point out the obvious fact that
all argumentation has a propositional content. Whenever we argue, we
argue about something. This can be argumentation itself, i.e., the
very subject I have been speaking about so far. But the content can be
all sorts of things: matters of fact or of cause and effect, such as
whether or not global warming presently exists and is man-made, or
whether or not an increase in the money supply will lead to greater
over-all prosperity; but also normative matters, such as whether or
not the possession (actual control) of something by someone implies
his rightful ownership (property) of the thing in question, or if
slavery or taxation are justified or not.

In short: argumentation can be either about facts or it can be
about norms. The source of an argumentation about facts is what I
shall call a disagreement; and its purpose is to resolve this
disagreement and effect a change to the better in one’s factual
beliefs so as to make the actions motivated by these beliefs more
successful. The source of an argumentation about norms, on the other
hand, is conflict; and its purpose is to resolve this conflict
and effect a change in one’s system of values so as to better
avoid future conflict.

In the original presentation of my argument, I was exclusively
concerned about the latter matter and this shall also be the central
topic here. But I have come to realize that in order to better
understand the nature of an argumentation about norms it is
instructive to first look briefly, by way of contrast, at an
argumentation about facts.

How is a factual disagreement settled within an argumentative
setting? That depends of course first on the subject matter of the
disagreement and then on the method(s)—the actions and
operations—to be employed in order to come to a conclusion and
decide between the rival truth claims under consideration. What
methods are appropriate for the given purpose? What, if anything, must
be observed, and how and under what circumstances? What needs to be
measured, and by means of what measuring standard or device? What
other purposefully constructed tools, instruments, machines, etc.,
must be at hand and in working condition to gather the relevant data?
Is there anything that must be counted or calculated? Must time and
time-lags be considered and time be measured? Must and can a
controlled experiment be set up? Are we aiming to establish a
correlation or are we looking for causation? Or is it a matter of
“meaning” and “understanding” rather than
“measuring” that is of concern? Is the matter of
contention at all an “empirical” matter? Or is it a
“logical” matter instead that must and can be settled by
deductive reasoning, or geometric, mathematical or praxeological
proof?—And finally then, when one has settled on the question
which method(s) to choose for a given purpose, these methods, tools
and operations must be put into action and practiced. The
relevant data must be actually collected and the measurements,
calculations, experiments, tests or proofs actually taken and
performed, so as to bring the initial disagreement to a possible
conclusion.

Now: What makes this endeavor of solving some factual disagreement
an argumentative justification? First and most obviously, both
disputants, and indeed everyone concerned about the matter of
contention, must consider each other as another person, equally
independent and each with his own, separate physical body. That is, no
person is to exercise physical control over any other person’s
body without his assent during the entire undertaking. Rather, each
person acts and speaks on his own, so as to make it possible that
everyone may arrive at the same resolution on his own, independently
and autonomously, and then accept the conclusion as in his own self-
interest. Nor, presumably, is any person involved in the undertaking
threatened, paid-off or bribed by any other to merely pretend to argue
and pronounce instead, regardless of outcome, a pre-determined
verdict.

While all this is generally recognized and accepted as a matter-of-
course by the “scientific community,” another requirement
is often overlooked—and yet it is in particular this requirement
that best brings out the crucial difference between
“factual” and “normative” argumentation.

Not only must everyone engaged in the endeavor of resolving some
factual disagreement be equally respected and assured in his own
personal bodily integrity to speak of an argumentative justification.
It is also necessary that each person must have equal access to all
“data” and all means, implements, instruments or tools
methodically required to decide the question at hand, so that each
person may perform the same actions and operations and replicate the
results on his own. That is, if it is necessary in order to resolve
some factual disagreement, for instance, to use paper and pencil, a
yardstick, a clock, a calculator, a microscope or a telescope, etc.,
or simply some ground on which to stand and make one’s
observations, then no one may be denied access to such devices. In
fact, it would be contrary to the purpose of an argumentation about
facts and hence entail a dialectic contradiction for anyone person to
say to anyone else, for instance: we disagree regarding the height of
this building or the speed of that car and to bring this disagreement
to a resolution we need a yardstick and a clock, but I deny you access
to a yardstick and a clock.

But—and with this I come slowly to my central concern:
argumentation about normative matters, i.e., of right and
wrong,—it would not entail a performative or dialectic
contradiction if I denied you access to this or that instrument or
tool or this or that standing room, if the source and content of our
argumentation is a conflict rather than a mere
disagreement. That is, if you and I have different and
incompatible plans, interests and goals regarding the instruments,
tools and standing room in question. Then, my refusal to permit you
access to this or that may be justified or not, but it would not in
itself be a self-contradictory demand.

It is the characteristic mark of an argumentation about facts, that
for the duration of argumentation a harmony of interests among all
participating parties must prevail. All property disputes are
temporarily suspended and also the outcome of the argumentation has no
consequences or repercussions for the subsequent distribution of
property. To bring a factual disagreement to a conclusion, every
actual or potential participant must perform, and is expected by
everyone else to perform, the same actions and operations with the
same or the same kind of objects. As long as the argumentation lasts,
everyone does what everyone else expects and wants him to do. All act
in harmony with one another. And at the end, after some at least
temporary conclusion has been reached, everyone, with his newly learnt
lesson, returns back to his normal life, in which everything else has
remained and stayed the same as before.—Yet in this normal life,
then, people do not only encounter factual disagreements. Indeed, as
an empirical matter, at least in the life of an adult person, factual
disagreements giving rise to argumentation are comparatively rare.
Because the most fundamental and elementary facts about the
composition and inner workings of the external world are long
recognized, accepted and taken for granted by everyone in his daily
life so as to never rise to the level of serious doubt. And if and
whenever any serious doubt concerning the truth-value of some factual
claim does arise, such disagreements are generally routinely and
methodically brought to some at least temporary settlement and
accepted quickly and without any resistance by all interested parties.
Rather than factual disagreements, then, it is the experience of
conflicts that motivates most serious argumentation. And it is
argumentation about conflicts that generates our most intense
interest.

VI

Conflicts arise, whenever two actors want and try to use one and
the same physical means—the same body, standing room or external
object for the attainment of different goals, i.e., when their
interests regarding such means are not harmonious but incompatible or
antagonistic. Two actors cannot at the same time use the same physical
means for alternative purposes. If they try to do so, they must clash.
Only one person’s will or that of another can prevail, but not
both.

Whenever we argue with one another about a matter of conflict,
then, we demonstrate that it is our purpose to find a peaceful,
argumentative solution to some given conflict. We have agreed not to
fight, but to argue instead. And we demonstrate as well that we are
willing to respect the outcome of our trial of arguments. Indeed, to
argue otherwise and say, for instance, ‘let us not fight, but
argue whose will is to prevail in our conflict, but at the end
of our argumentation, and irrespective of its outcome, I will fight
you anyway’ would entail a performative or dialectic
contradiction. To say so is to contradict the very purpose of
argumentation.

The task faced by any proponent and opponent engaged in an
argumentation about conflict, then, is to find a peaceful resolution
not only for a conflict at hand but also for all potential future
conflicts, so as to be able to interact henceforth with one another in
a conflict-free and peaceful manner, despite and notwithstanding each
other’s differing interests, whether now or in the future.

The definitive answer to this problem is provided by a brief
analysis of the logic of action, i.e., by method of praxeological
reasoning.

Logically, to avoid all future interpersonal conflict, it is only
necessary that every good—every physical thing employed as a
means in the pursuit of human ends—be always and at all times
owned privately, i.e., be controlled exclusively by one
specific person (or voluntary partnership or association) rather than
another, and that it be always recognizable and clear, which good is
owned by whom and which is not or by somebody else. Then, the
interests, plans and purposes of different actors may be as different
as can be, and yet no conflict will arise between them as long as
their actions involve exclusively the use of their own, private
property and leave the property of others alone and physically
intact.

This is only part of the answer, however. For then immediately the
next question arises of how to accomplish such a complete and
unambiguous privatization of all economic goods peacefully,
i.e., without generating and leading itself to conflict? How can
physical things become someone’s private property in the first
place; and how can interpersonal conflict in the appropriation of
physical things be avoided?

Praxeological analysis also yields a conclusive answer to these
questions. For one, to avoid conflict it is necessary that the
appropriation of things as means is effected through actions, rather
than mere words, declarations or decrees. Because only through a
person’s actions, taking place at a particular place and time,
can an objective and thus inter-subjectively ascertainable link
between a particular person and a particular thing and its extension
and boundary be established and hence, can rival ownership claims be
settled objectively.

And secondly, not every recognizable taking of things into
one’s possession is peaceful and can thus be argumentatively
justified. Only the first appropriator of some previously un-
appropriated thing can acquire this thing peacefully and without
conflict, and only his possessions, then, are property. For, by
definition, as the first appropriator he cannot have run
into conflict with anyone else in appropriating the good in question,
as everyone else appeared on the scene only later. And any
late-comer, then, can take possession of the things in question only
with the first-comer’s consent. Either, because the first-comer
had voluntarily transferred his property to him, in which case and
from which time on he became its exclusive owner. Or else, because the
first-comer had granted him some conditional use-rights concerning his
property, in which case he did not become the thing’s owner but
its rightful possessor. Indeed, to argue to the contrary and say that
a late-comer, independent and irrespective of the will of the first
possessor of some given thing, should be regarded as its owner entails
a performative or dialectic contradiction. Because this would lead to
endless conflict rather than eternal peace and hence be contrary to
the very purpose of argumentation.

If different persons want to live in peace with one another,
conceivably from the beginning of mankind until its end—and in
arguing about conflict they demonstrate that they do want this!—
then only one solution exists that I shall call the “principle
of prior possessions:” All just and lawful (and argumentatively
justifiable) possessions, whether in the form of outright property or
as rightful possessions, go back directly, or indirectly through a
chain of conflict-free and hence mutually beneficial property-title
transfers, to prior and ultimately original appropriators and acts of
original appropriation or production. And vice versa: All possessions
of things by some person that are neither the result of his prior
appropriation or production, nor the result of voluntary and conflict-
free acquisition from a prior appropriator-producer of these things,
are unjust and unlawful (and hence argumentatively unjustifiable)
possessions.

The question to be settled in an argumentative dispute between a
proponent and an opponent, then, does not really concern a matter of
principle. Because the principle of prior possession itself cannot be
argumentatively denied without falling into a performative or
dialectic contradiction. It is an ultimate ‘given’ and can
be recognized as apriori valid. Under dispute between a proponent and
an opponent can only be matters of fact, i.e., whether or not the
principle had been correctly adhered to and applied in all instances.
Whether the proponent’s each and every current possession was
acquired justly, in accordance with the principle of prior possession,
or whether the opponent of the status quo of current possessions can
demonstrate the existence of a prior and un-relinquished title of his
to some or all (but not quite all, as we will see in a moment) of the
proponent’s present possessions.—And the principle of
prior possession also implies that in any dispute between a proponent
and opponent about rival property claims concerning some particular
means of action, it is always the current and present distribution of
property among the contending parties that serves as first and
prima facie evidence for deciding on their contentious claims.
Prima facie, the present possessor of the thing in question
appears to be its prior possessor and hence its rightful owner, and
the burden of proof to the contrary, i.e., the demonstration that the
evidence provided by the status quo is false and deceptive, is always
on the opponent of the present state of affairs. He must make
his case, and if he can’t, then not only remains everything as
before but the opponent owes the proponent compensation for the misuse
made of his time in having to defend himself against the
opponent’s unjustified claims made against him (thus reducing
the likelihood of frivolous accusations).

And moreover: It is not just the principle and the procedure to be
applied in any debate between a proponent and opponent that is
irrefutably ‘given,’ it is also one elementary fact that
is so ‘given’ and beyond any dispute—which leads me
back to the just mentioned restriction of ‘all, but not quite
all’ and the argument from argumentation itself.

For while it is a contingent empirical question which
external good is or is not rightfully owned by whom, and while in
principle it is possible to place any current possession of any and
all external goods by any one person into doubt as regards its
lawfulness, this is not the case and it is not possible to do so with
respect to anyone person’s physical body as his primary means of
action. No one can consistently argue that he is the rightful owner of
another person’s body. He can say so, of course. But in doing so
and seeking the other person’s assent to this claim he becomes
involved in a performative or dialectic contradiction. Hence, it is
and can be recognized as an apriori truth that each person is
the rightful owner of the physical body that he naturally comes with
and has been born with, and that he has directly appropriated prior
and before any other person could possibly do so indirectly (by means
of his own body). No argumentation between a proponent and an opponent
is possible without recognizing and respecting each other as
independent and separate persons with their own independent and
separate bodies. Their bodies do not physically clash or collide, but
they argue with one another and hence, they must recognize and respect
the borders and boundaries of their separate and independent
bodies.

Some critics have argued that this does not demonstrate a
person’s ownership of his entire body, but at best only of parts
of it. Why? Because to argue it is not necessary to use all body
parts. And true enough, you do not need two kidneys, two eyes or an
appendix to argue. Indeed, you also do not need your body hair or even
arms and legs to argue. And hence, according to such critics, you
cannot claim to be the lawful owner of your two kidneys or eyes, your
legs and arms. Yet this objection does not only appear silly on its
face—after all, it implies the recognition of these ‘un-
necessary’ parts as natural parts of one unitary body
rather than as separate, stand-alone entities. More importantly, it
involves, philosophically speaking, a category mistake. The critics
simply confuse the physiology of argumentation and action with
the logic of argumentation and action. And this confusion is
particularly surprising coming from economists, and even more so from
economists familiar also with praxeology. For the fundamental
distinction made in economics between ‘labor’ and
‘land’ as the two originary means of production, which
corresponds exactly to the distinction made here between
‘body’ and ‘external world,’ is also not a
physiological or physicalistic distinction, but a praxeological one.

The question to be answered is not: which body parts are
physiologically necessary requirements for one person arguing with
another person. Rather, the question is: which parts of my body and
which parts of your body can I or you argumentatively justify as my or
your lawful possessions. And to this a clear and unambiguous answer
exists. I am the lawful owner of my nature-given body with everything
naturally in it and attached to it, and you are the lawful owner of
your entire nature-given body. Any argument to the contrary would land
its proponent in a performative or dialectic contradiction. For me to
say, for instance, in an argumentation with you, that you do not
rightfully own all of your nature-given body is contradicted by the
fact that in so arguing, not fighting, with you, I must recognize and
treat you as another person with a separate body and recognizably
separate physical boundaries and borders from me and my body. To argue
that you do not lawfully own your entire natural body, which you
actually possess and have peacefully taken into possession before I
could have possibly done so indirectly by means of my natural body, is
to advocate conflict and bodily clash and hence contrary to the
purpose of argumentation: of peacefully resolving a present conflict
and avoiding future conflict.

All I could possibly claim without immediate contradiction is that
you do not own all of your current body, because not all of its
current parts are its natural parts. That some current body parts are
artificial parts, i.e., parts that you had acquired and attached to
your nature-given body only later and indirectly. I could claim, for
instance, that your kidney is not lawfully yours, because you were not
born with it but had taken it against my will from my body and
implanted it in yours. Yet in all cases such as this, then, in
accordance with the principle of prior possessions, the burden of
proof is on me, i.e., the opponent of the status quo of body
parts.

A similar category mistake, i.e., a fundamental confusion of the
empirics of argumentation on the one hand and the logic
of argumentation and argumentative justification on the other, is the
source also of another repeatedly, and from several sides presented
‘refutation’ of the argument from argumentation. This
‘refutation’ consists of a simple observation: the fact
that slaves can argue with their slave masters. Therefore, with slaves
being able to argue, so the conclusion, my claim that argumentation
presupposes self-ownership and libertarian property rights is
‘empirically falsified.’ Astonishingly, then, I should
have never heard of arguing slaves.

But I did not claim that in order for one person to argue with
another full libertarian property rights must be recognized and in
place (which would imply, at least under present circumstances, that
no one could ever engage in argumentation with anyone else) and that
argumentation under any other, less than libertarian conditions is
impossible. Of course, a slave and its master can engage in
argumentation. Indeed, argumentation is possible under practically all
empirical circumstances, as long as every participant can only say and
do what he says and does on his own and no one is threatened or
made to say or do so. Hence, the criticism levelled against the
argument from argumentation is completely irrelevant and beside the
point. The argument is not an empirical proposition about whether or
not argumentation between one person and another and non-libertarian
conditions can co-exist; and accordingly, it also cannot be countered
and refuted by any empirical evidence. Rather, the argument concerns
the categorically different question whether the existence of
non-libertarian conditions can or cannot be argumentatively justified
without running into a performative or dialectic contradiction. And
with regard to this question the answer is straightforward.

A slave master can argue with his slave concerning the truth value,
for instance, of the law of gravitation or the existence of invisible
germs, and if he were to permit the slave access to all means and data
necessary to bring the contentious matter to a conclusion, his arguing
with the slave would not involve any contradiction but constitute
indeed genuine argumentation. But matters are quite different when it
comes to an argumentation between slave master and slave about the
subject of slavery, i.e., the conditions under which their
argumentation takes place. In this case, if the slave master would say
to the slave ‘let’s not fight but argue about the
justification of slavery,’ and he would thereby recognize the
slave as another, separate and independent person with his own mind
and body, he would have to let the slave go free and leave. And if he
would say instead ‘so what, I have recognized you momentarily as
another independent person with your own mind and body, but now, at
the end of our dispute, I deny you ownership of the means necessary to
argue with me and prevent you from leaving anyway,’ then he
would be involved in a performative or dialectic contradiction. To do
so would be contrary to the very purpose of taking argumentation
seriously and of accepting the consequences of argumentation. This
‘conversation’ between slave master and slave would not
constitute genuine argumentation, but be at best an idle or even cruel
parlor game.

And the same response of ‘you are simply confused,’
then, also applies to those critics who tried to double down on the
‘but slaves can argue, too,’ criticism by dragging up
additional ‘counterexamples.’ Yes, true enough, a person
in jail can also engage in argumentation with his jailer, and a person
subjected to taxation can also argue with the taxman. Indeed, who has
ever doubted that? However, the question to be answered, and the one
addressed by the ethics of argumentation, is if the current status of
the person in jail or subject to taxation can be argumentatively
justified or not. The jailer would have to demonstrate that the jailed
had previously violated the argumentatively indisputable principle of
prior possessions and thus committed an unlawful action or
‘crime,’ and that the current restrictions imposed on the
movements and prior possessions of the jailed were justified in light
of this earlier crime. And if the jailer would not or could not
provide such empirical proof of a prior crime of the jailed, and if he
then still did not let the jailed go free and restored him to his
prior possessions, the jailer would not be engaged in argumentation
but in a mock debate, and it would be he, who was guilty of a
crime.

And likewise for any verbal dispute between the taxman and the
taxed. The taxman, in order to argumentatively justify his claim to
any of the tax-subject’s current possessions, would have to
demonstrate that he is in possession of a prior debt contract or some
sort of rental contract that would justify his present claim to any of
his opponent’s current possessions. And if he would not or could
not provide any such evidence—and of course no taxman ever could—then
he would have to give up on his demand; and if he would not do
so but insisted on payment, his verbal exchanges with the tax-subject,
too, would not qualify as genuine argumentation but as only a mock
trial, and it would be the taxman, who was an outlaw.

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